Landpark Holdings Pty Ltd and Western Australian Planning Commission

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LANDPARK HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 130

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 17 MAY 2007

DELIVERED : Edited reasons delivered extemporaneously on 17 MAY 2007

FILE NO/S: DR 12 of 2007

BETWEEN: LANDPARK HOLDINGS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Two lot subdivision of allotment created by consolidation of two earlier lots Land coded R2.5 Scheme requires that the use or development of land for any of the residential purposes dealt with by the Residential Design Codes of Western Australia (2002) is to conform to the Codes Minimum site area per dwelling in Table 1 of Codes for R2.5 code is approximately double the size of proposed allotments Whether subdivision is capable of approval Whether approval of subdivision conflicts with provision of Scheme Use or development of land does not include subdivision Whether approval is consistent with a State planning policy that deals with substantially the same matter Whether approval is consistent with the general intent of the Scheme Whether appropriate to depart from policy "Rounding off" subdivision and settlement pattern Whether adverse planning precedent

Legislation:

Planning and Development Act 2005 (WA), s 138, s 138(3)(a), s 138(c)(i), s 138(c)(ii), s 138(2), s 138(3), s 238(4), s 251(1)
Residential Design Codes of Western Australia (2002), cl 1.4.2, cl 1.4.3, cl 3.1.1 A1.1, cl 3.1.1 P.1, cl 3.1.3 A3, cl 5.2.2, Table 1
Shire of Busselton Town Planning Scheme No 20, cl 4(a), cl 4(b), cl 6(3), cl 10(1), cl 20, Sch 1
Town Planning and Development Act 1928 (WA), s 20(5)
Town Planning Regulations 1967 (WA), App B

Result:

Application for review allowed and subdivision approval granted subject to conditions

Category: A

Representation:

Counsel:

Applicant: MR MJ Flint
Respondent: Ms CA Ide

Solicitors:

Applicant: Lavan Legal
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Boulter and City of Subiaco [2007] WASAT 71
Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Landpark Holdings Pty Ltd sought review of the refusal by the Western Australian Planning Commission of a two lot subdivision. The land was coded R2.5 under a local planning scheme. The scheme required the use and development of land to conform to the Residential Design Codes of Western Australia (2002). The minimum site area set by Table 1 of the Codes was approximately double the size of the proposed allotments and the proposed frontages were less than the minimum frontage set by Table 1 of the Codes.
The Commission contended that this proposed subdivision conflicted with the scheme and was therefore incapable of approval, unless one of six exceptions were established.
Following the hearing the Tribunal gave an oral decision. The Tribunal determined that approval of the subdivision did not conflict with the scheme as use or development of land did not include subdivision. Moreover, the Codes recognised that the Commission or the Tribunal may approve a subdivision which involves allotments that are smaller in area than the minimum site area that corresponds to the residential density code that applies to the land for development purposes.
The Tribunal also determined that, if there had been a conflict, the application would nevertheless have been capable of approval, because it was consistent with the reasons for imposing the coding under the scheme.
Finally, the Tribunal determined that it was appropriate, in the particular and somewhat unusual circumstances of the case, to depart from the Commission's policy that the minimum site area and frontage requirements of the Codes form the basis for the subdivision of land and to grant subdivision approval for allotments which are smaller than the minimum site area corresponding to the coding of the land, because:
•the site formerly comprised two allotments of approximately the size of the proposed allotments;
•the proposed allotment sizes were consistent with that which is characteristic in the locality;
•there would not be any significant streetscape impact; and
•there would not be any loss of natural vegetation.
The Commission's decision was set aside and conditional subdivision approval was granted.
The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

Introduction

Landpark Holdings Pty Ltd (applicant) seeks review under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the Western Australian Planning Commission (Commission or respondent) to refuse approval for the subdivision of Lot 300 Caves Road, Siesta Park (site) into two allotments of 1972 square metres each in area with street frontages of 34.6 metres and 34.7 metres.
The site is located approximately halfway between Busselton and Dunsborough and abuts Caves Road on its southern boundary and Geographe Bay on its northern boundary. The site was created in 1992 by the amalgamation of two allotments which were each approximately the size of the proposed allotments. The site presently comprises a substantial two storey single house located centrally on the site and stretching across most of its width behind a masonry street front wall.
The site is one of 22 allotments between the Carbunup River drain to the west and the Siesta Park holiday village development to the east that are zoned "Residential" and have a density coding of "R2.5" under the Shire of Busselton Town Planning Scheme No 20 (TPS 20 or Scheme). With the exception of the site and one other allotment, that is, Lot 66, the allotments in this group of 22 have areas of between 1703 square metres and 2987 square metres and have an average area of 2090 square metres. However, in the immediate locality of the site, the average area of allotments is approximately 1980 square metres.
The subdivision application was notified to the Water Corporation, Aqwest, the Health Department, the Fire and Emergency Services Authority, Main Roads WA, which is the authority responsible for the operation, maintenance and safety of Caves Road in the vicinity of the site, and the Shire of Busselton (Shire). Of these authorities only the Shire objected to the proposed subdivision. The Shire recommended refusal of the subdivision on the basis that the proposal is inconsistent with the Residential Design Codes of Western Australia (2002) (Codes).
The subdivision application was recommended for refusal by the Commission's assessing officer and was refused by the Commission for the following reasons:
"1.The proposed subdivision does not comply with the Shire of Busselton District Planning Scheme No 20, by way that it does not meet the lot size requirements of the Residential Design Codes 2002.
2.The proposed subdivision does not comply with the minimum lot sizes as required by [section] 3.1.3 of the Residential Design Codes 2002.
3.Approval to the subdivision would set an undesirable precedent for subdivision that is not in accordance with the Residential Design Codes 2002."
The President has formed the opinion that the application is likely to raise complex or significant planning issues for the purposes of s 238(4) of the PD Act and has, therefore, listed the proceedings for determination before me today.

Issues for determination

The following three issues arise for determination in this review:
1.Whether approval of the proposed subdivision conflicts with the provisions of TPS 20;
2.If the answer to 1 is "yes", whether any of the six exceptions set out in s 138(3) of the PD Act is established so that the proposed subdivision is capable of approval in the exercise of planning discretion; and
3.If the answer to 1 is "no", or if the answer to both 1 and 2 is "yes", whether the proposed subdivision should be approved in the exercise of planning discretion, having due regard to:
i.the provisions of TPS 20;
ii.orderly and proper planning;
iii.traffic safety; and
iv.the potential for an adverse planning precedent.
I will address each of these three issues in turn.

Does approval of the proposed subdivision conflict with TPS 20?

Section 138(2) of the PD Act states as follows:
"Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme."
The Commission contends that approval of the proposed subdivision conflicts with cl 6(3) of TPS 20 and that the subdivision is, therefore, incapable of approval under s 138(2) of the PD Act, unless one of the six exceptions set out in s 138(3) of the PD Act is established. Clause 6(3) of the Scheme states as follows:
"Except as otherwise provided for by the Scheme, the use or development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of those Codes."
The acceptable development housing density provision in cl 3.1.1 A1.1 of the Codes states as follows:
"Development which complies with the following is deemed to meet the relevant Performance Criteria:
A1.1Development which complies with the dwelling type and site area requirements set out in Columns 2, 3 and 4 of Table 1 against the relevant R‑Code in Column 1, and the following provisions."
The corresponding performance criteria in cl 3.1.1 P.1 of the Codes states as follows:
"Development of dwellings of the type and density indicated by the R‑Code designated in the Scheme."
The minimum site area per dwelling stated in Table 1 for the R2.5 code is 4000 square metres whereas the proposed subdivision would create allotments of 1972 square metres each in area. Furthermore, Table 1 of the Codes prescribes a minimum frontage of 40 metres in the R2.5 code whereas the proposed subdivision would create allotments with frontages of 34.6 metres and 34.7 metres.
As the Tribunal has recently observed in Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110 at [29], s 138 of the PD Act effected a significant change in planning law concerning subdivision in Western Australia. Where approval of a subdivision conflicts with a provision of a local planning scheme such as TPS 20 the subdivision is prohibited unless one of the six exceptions set out in s 138(3) is established.
However, approval of the proposed subdivision does not conflict with cl 6(3) of TPS 20. As noted earlier, that clause requires that "the use or development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of those Codes". The term "use" is not defined in the Scheme or in the PD Act but the term "development" is defined by cl 10(1) and Sch 1 of the Scheme as follows:
"'Development' means the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works on any land."
In contrast to the situation in every other Australian planning jurisdiction (see Boulter and City of Subiaco [2007] WASAT 71 at [61]), in the Shire of Busselton and in Western Australia generally "development" does not include subdivision. The subdivision of land does not, therefore, involve the use or development of any land for the purposes of cl 6(3) of TPS 20. Consequently, approval of the proposed subdivision does not conflict with the provision.
The absence of conflict between approval of a subdivision application that proposes allotments with areas less than that contemplated by the residential density code that applies to the land under a local planning scheme and the scheme is recognised in the Codes. Clause 1.4.2 of the Codes states in part as follows:
"There are several implications as to the use of the Codes in the subdivision process:
•the density provisions of the Codes (e.g. minimum site areas and frontages) are intended to be guidelines for the Commission in considering applications for the subdivision of green title or survey‑strata title land;
•the Codes as a consequence, include a provision permitting approval of development on a pre-existing lot or any lot created by the Commission for a Single House, even where the lot does not meet the required area or frontage; … " [Emphasis in bold added.]
The provision referred to in the second bullet point is cl 3.1.3 A3 which states that:
"The following variations to the minimum site areas set out in Column 3 of Table 1 may be made:
...
(ii)in the case of a Single House, the area of a lot approved for subdivision by the Commission, … "
In other words, the Codes contemplate that the Commission and the Tribunal on review may approve a subdivision which involves allotments that are smaller than the minimum site area that corresponds to the residential density code that applies to the land for development purposes. Where, in the exercise of planning discretion, the Commission or Tribunal approves the creation of such an allotment the minimum site area required for development of a single house is varied under the Codes to the area of the approved allotment.
It is correct, as the Commission contends, that cl 1.4.2 and cl 3.1.3 A3 of the Codes were drafted at a time when s 20(5) of the former Town Planning and Development Act 1928 (WA) stated that in giving its approval for a proposed subdivision the discretion of the Commission was not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition. However, the provisions of the Codes are also consistent with the terms of s 138 of the PD Act and the standard local planning scheme clause, requiring that the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of the Codes, in cl 5.2.2 of the model scheme text in Appendix B to the Town Planning Regulations 1967 (WA), of which cl 6(3) of TPS 20 is a typical example.
However, although approval of the proposed subdivision does not conflict with cl 6(3) of TPS 20, as cl 1.4.3 of the Codes recognises there is "in practice, an inextricable link between subdivision and development standards in the case of Single Houses". As a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission and the Tribunal on review must give due regard to cl 6(3) of TPS 20 and to its obvious expectation that generally the development of a single house on land coded R2.5 under the Scheme requires a minimum site area of 4000 square metres and a minimum frontage of 40 metres and that the Commission will not, therefore, generally approve an allotment of a lesser size or frontage.

Are any of the exceptions in s 138(3) of the PD Act established?

In light of my earlier reasons this issue does not arise for determination. However, for completeness, I will briefly address it. The applicant seeks to establish one or more of the exceptions in par (a), par (c)(i) and par (c)(ii) of s 138(3). Paragraph (a) of s 138(3) states as follows:
"The local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter."
It is common ground that TPS 20 was published more than five years ago and that a consolidation has not been published in the interim. Ms Rachel Chapman‑Willey, a town planner who gave evidence on behalf of the applicant, considers that approval is consistent with four State planning policies, namely:
•State Planning Policy No 2 ‑ Environment and Natural Resources Policy;
•State Planning Policy No 2.6 ‑ State Coastal Planning Policy;
•State Planning Policy No 3 ‑ Urban Growth and Settlement Policy; and
•State Planning Policy No 7 ‑ Leeuwin Naturalist Ridge Policy.
However, none of these State policies deal with substantially the same matter as cl 6(3) of TPS 20, namely, relevantly, setting a minimum site area or a minimum frontage for residential development.
Paragraph (c) of s 138(3) states as follows:
"In the opinion of the Commission –
(i)the conflict is of a minor nature; or
(ii)the approval is consistent with the general intent of the local planning scheme."
Ms Chapman‑Willey considers that the conflict, if it exists, is of a minor nature because the proposed allotments are consistent with the surrounding and nearby lot sizes, the subdivision would return the land to its original state before amalgamation, and development, following subdivision, would not have any additional impact when viewed from Geographe Bay and would have only minor impact in terms of streetscape. However, if there were a relevant conflict, it would involve more than a 50% non‑compliance with a density standard. Although Ms Chapman‑Willey's observation would be material in relation to a merit assessment of the application, if the application is capable of approval in the exercise of discretion, a 50% non‑compliance could not be described as being of a minor nature.
Finally, Ms Chapman‑Willey considers that the approval is consistent with the general intent of the Scheme because it is consistent with parts of the general objects of the Scheme stated in cl 4(a) and cl 4(b). Those general objects are as follows:
"(a)to provide for the development and, where necessary, the betterment of the Shire of Busselton in physical, social and economic terms (and, in particular, to broaden its economic base) and for orderly and economic development and optimum use of its land and other resources, consistent with the conservation of important natural and man‑made features, and to do so in such a way that the likely need and aspirations of the people of the Shire, the region and the State will be provided for and realised;
(b)to provide a comprehensive planning instrument for the Shire that is clear and explicit but which provides flexibility in its application."
However, the general intent of the Scheme cannot be equated or even readily derived from these general objects, because they are of their nature very general and in part internally inconsistent.
Mr Flint, counsel for the applicant, raised a further argument in his address as to why the approval is consistent with the general intent of the local planning scheme. The Commission's Statement of Issues, Facts and Contentions includes the following:
"The surrounding lots of less than 2000 [square metres] do not comply with the minimum lot size required by the R2.5 density code. The Shire advises that despite the non compliance, the R2.5 density code was deliberately applied to the subject area via TPS 20 to avoid further subdivision of the lots. This was in response to the Shire's assessment that further subdivision in the locality was not sensible given concerns relating to coastal erosion of the adjoining 'soft' coastline and a desire to minimise traffic conflict along the busy Caves Road, which would result from more intensive subdivision.
The Shire also advises that the R2.5 code was imposed instead of the R5 code due to the increased front and rear setbacks which are required by the R2.5 code. The Shire's objective in this regard was to achieve a greater setback from Caves Road and the foreshore thus reducing the visibility of existing/proposed development and achieving a more rural character."

The applicant accepts that these are the reasons why the site has been coded R2.5 under the Scheme. These reasons indicate the relevant general intent of the Scheme in imposing this coding and, by incorporation, in setting a minimum site area and a minimum frontage for residential development.
The Commission called Mr Matthew Cuthbert, a town planner, to give evidence on its behalf. Mr Cuthbert and Ms Chapman‑Willey agree that approval of the proposed subdivision does not create a concern in relation to coastal erosion. Mr Cuthbert in his witness statement expressed the opinion that the creation of a second access point from the site and the intensification of the development that would result from the subdivision would be likely to have a negative impact on traffic safety. However, when he was called to give evidence Mr Cuthbert withdrew his evidence that intensification of development on the site would be likely to have a negative impact on traffic safety.
Furthermore, the applicant called evidence from Mr Jonathan Riley, a traffic engineer with over 25 years' experience. Mr Riley noted that the additional traffic generated by the second allotment would be only 10 vehicle trips per day on a road carrying approximately 5600 vehicles per day which would not have any significant effect in traffic engineering terms. The sight lines are adequate for traffic entering the roadway and Main Roads WA, which is responsible for the operation, maintenance and safety of Caves Road in the vicinity of the site, has no objection to the proposed subdivision subject to the developer building an access point for each allotment. Mr Riley concluded that the subdivision and subsequent development would not give rise to any concerns regarding road safety on Caves Road. In light of Mr Riley's specialist qualifications and significant specialist experience, the Tribunal prefers his evidence over Mr Cuthbert's in relation to traffic safety insofar as Mr Cuthbert continues to maintain a concern.
In relation to setbacks, the planning experts agree that the difference in setback requirements for the R5 code, with which the proposed allotment sizes are generally consistent, as against the R2.5 code would have a minimal impact on the existing streetscape of Caves Road and visibility from the foreshore.
In the circumstances, therefore, if there were a conflict between approval of the proposed subdivision and cl 6(3) of TPS 20, which there is not, I would have found that the approval is consistent with the general intent of the Scheme, because it is consistent with the reasons for imposing the coding under the Scheme.

Should the proposed subdivision be approved in the exercise of planning discretion?

As noted earlier, the Tribunal is required to give due consideration to cl 6(3) of TPS 20 and its obvious expectation that generally residential development on land coded R2.5 requires a minimum site area of 4000 square metres and a minimum frontage of 40 metres and that the Commission will not, therefore, generally approve an allotment of a lesser size or frontage. As the Codes state, the density provisions of the Codes are intended to be guidelines for the Commission and, therefore, for the Tribunal in considering subdivision applications. Moreover, the Tribunal is required to give due consideration to the Commission's Policy 2.2 ‑ Residential Subdivision (DC2.2) as it is a provision of State Planning Policy 1 ‑ State Planning Framework.
Clause 3.2.1 of DC2.2 states that:
"The minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land."
Clause 3.2.3 of DC2.2 sets out the circumstances in which the Commission may consider a variation below the minimum site area requirements prescribed in Table 1 of the Codes, namely, where:
"•the minimum lot size variation applies to only one lot in the subdivision;
•the variation reduces the area of that one lot by no more than 5% of the average lot size specified in Table 1 or elsewhere in the [Codes];
•the variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the [Codes]; and
•the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the [Commission] forms the opinion that it will have a particular beneficial outcome for the community."
However, as Barker J held in Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], while the Policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied. His Honour said that:
" … the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to] the particular application."
The Tribunal considers that, in the particular and somewhat unusual circumstances of this case, it is appropriate to depart from the application of DC2.2 and to approve the proposed subdivision. The Tribunal has arrived at this view for four reasons advanced by Ms Chapman‑Willey.
First, prior to 1992, the site comprised two allotments. The proposed subdivision would simply restore that historical circumstance. It is correct, as Ms Ide, counsel for the Commission, submits, that in all likelihood the former subdivision pattern that comprised two allotments on the site pre‑dated the current planning regime. It may well have pre‑dated modern town planning. Nevertheless, it is a relevant circumstance of the case.
Second, as Mr Cuthbert agrees, the proposed allotment sizes are consistent with that which is characteristic in the locality of the site. In the immediate locality of the site the average allotment size is, as I have noted earlier, 1980 square metres. As Ms Chapman‑Willey says:
"The proposal is merely a 'rounding off' of the subdivision and settlement pattern in the locality."
The Tribunal finds that there is a distinct settlement pattern in the locality between the river drain and the holiday village and that the subdivision is consistent with and would largely complete this settlement pattern.
Third, as the planning experts agree, the demolition of the existing substantial single house and the erection of a single house on each of the proposed allotments would not have any significant streetscape impact. The existing house, as I have noted, is located centrally on the site and stretches across most of the width of the site. The northern side of Caves Road has a residential rather than a rural character and the existing streetscape of the northern side of Caves Road is dominated by solid masonry walls with the upper levels of substantial houses visible over the top. The subdivision will not materially affect character or streetscape.
Fourth, as the planning experts also agree, the proposed subdivision and subsequent residential development will not result in additional clearing of natural vegetation. As the footprint of the existing house is so large and as, according to the aerial photograph and other photographs in evidence, there is little, if any, natural vegetation left on the site, the physical division of the site and erection of two rather than one house upon it will not result in loss of natural vegetation.
The planning experts agree that the difference between the proposed frontage of 34.6 metres and 34.7 metres and the minimum frontage for the R2.5 code for residential development of 40 metres would not warrant refusal of the application. Mr Cuthbert accepts that the lots are capable of residential development, as is clearly the case. Ms Chapman‑Willey notes that the frontage is relevant to the streetscape and the streetscape in the locality of the site is dominated by similarly sized frontages. This is also apparent on the various cadastral plans in evidence.
Mr Cuthbert considers that the planning merits do not warrant a departure from the Commission's Policy because "the policies are soundly based and should be consistently applied throughout the State to ensure that their integrity is not undermined". However, this approach in essence would require an inflexible application of policy in a manner not permitted by law.
Mr Cuthbert also gave the following evidence:
"The coding of R2.5 is a guide for density for lots in the locality and has been determined through a rigorous process of weighing of differing goals of the Shire, the Respondent and the community, and was subject to final approval by the Minister. By virtue of TPS 20, members of the community would have an expectation that the current density in the area would be maintained.
The purpose of coding the subject land at R2.5 in TPS 20 was to ensure that the lot density in the locality was not increased beyond that which existed. It is also apparent that a certain outcome in relation to setbacks was also sought."
The density coding of the site is, as I have said, a most relevant matter for consideration in the exercise of discretion and certainly informs reasonable community expectations. However, reasonable community expectations would also be informed by the particular and somewhat unusual circumstances of the case set out earlier in these reasons.
If regard is had to those circumstances, as it must be in the exercise of planning discretion, they warrant a departure from the application of the Policy in this particular case. As I have noted earlier, the planning experts agree that the difference in setback requirements for the R5 code as against the R2.5 code would have minimal impact on the existing streetscape and visibility from the foreshore.
For each of these reasons, approval of the proposed subdivision would be consistent with orderly and proper planning in the particular circumstances of the case.
As noted earlier in his witness statement, Mr Cuthbert raised the issue of traffic safety. I have already addressed that issue in the context of whether any of the exceptions in s 138(3) of the PD Act are established. I find that the proposed subdivision and subsequent residential development would not give rise to any traffic safety issue.
Finally, Mr Cuthbert considers and the Commission contends that approval of the proposed subdivision would give rise to an undesirable precedent for similar proposals. I considered the issue of adverse planning precedent in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74] where I adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment:
"(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications."
Neither of these criteria is satisfied in the circumstances of this case with the result that precedent is not a relevant planning consideration.
For reasons set out earlier, the proposed subdivision is unobjectionable as it is appropriate in the particular circumstances of this case to depart from the Commission's Policy and it does not give rise to any traffic safety concern. Furthermore, the planning experts agree that there is only one property, Lot 66, in the area between the river drain and the tourist development which has similar but, importantly, not identical characteristics as the site. Lot 66 has a similar size to the site although it is smaller by approximately 200 square metres. More significantly, it is distinguishable from the site because it is narrower, having a width of approximately 50.3 metres as opposed to approximately 69.3 metres and it was not the product of an amalgamation. Lot 66 could not, therefore, give rise to an undistinguishable application.
Mr Cuthbert also identified four lots in the area to the west of the river drain which have areas of 5417 square metres, 5223 square metres, 3906 square metres and 8767 square metres and expressed the opinion that approval of the proposed subdivision would give rise to an adverse planning precedent in terms of subdivision of those allotments.
However, as Ms Chapman‑Willey noted, these other allotments do not have all of the same characteristics as the site which is the subject of these proceedings. In particular, there is not as distinctive a pattern of settlement and certainly not the same distinctive pattern of settlement as exists between the river drain and the holiday village. There is no evidence that these lots are the subject of amalgamation. One has a narrow frontage to Caves Road. The aerial photograph indicates that native vegetation is likely to be lost if these sites are subdivided and developed. Therefore, if a subdivision application were made in relation to any of these sites it would be distinguishable from the subdivision application which is the subject of these proceedings.
However, even if the issue of adverse planning precedent were relevant, I do not consider that it would warrant refusal of the application in the exercise of planning discretion in light of my earlier reasons.
It follows that the application for review should be allowed and the decision of the respondent to refuse subdivision approval should be set aside and a decision substituted granting subdivision approval subject to conditions.
The Commission proposed without prejudice draft conditions as required by the Tribunal's orders. The applicant responded to the Commission's draft conditions, accepting most and objecting to two. Ultimately, the parties agreed on a set of conditions that should be imposed if the Tribunal came to the view that approval of the application subject to conditions is appropriate.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse to approve the subdivision of Lot 300 Caves Road, Siesta Park, into two lots is set aside and a decision is substituted that subdivision approval is granted subject to the following conditions:
(a)the existing house being demolished and removed (local government);
(b)once the existing house is demolished the land being graded and stabilised at the subdivider's cost (local government);
(c)once the existing house is demolished any superfluous underground structures on the land being filled at the subdivider's cost to the satisfaction of the Western Australian Planning Commission (local government);
(d)the applicant providing a geotechnical report certifying that any filling or backfilling arising from compliance with conditions (b) and (c) has been adequately compacted (local government);
(e)each lot being provided with a constructed access to Caves Road (Main Roads WA);
(f)arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision (Western Power);
(g)suitable arrangements being made with the Busselton Water Board so that provision of a suitable water supply service will be available to lots shown on the approved plan of subdivision (Busselton Water Board).
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER

[2007] WASAT 130

17 May 2007